Monday, August 26, 2002

More defendants go it alone

More people eschewing lawyers to defend themsevles

By Marie McCain
The Cincinnati Enquirer

        Garey Smith walked slowly toward the jury box inside a Hamilton County Common Pleas courtroom last month and scanned the faces of the 12 people who would eventually find him guilty of murder.

        Like former Ohio Congressman James Traficant, accused terrorist Zacarias Moussaoui, and thousands of others nationwide, the 52-year-old Over-the-Rhine man acted as his own lawyer.

        “Ladies and gentleman,” he said to the jury. “I'm on trial for my life.”

        Charged with killing one man and wounding three others, he rambled through his address, stopped repeatedly by prosecution objections and instructions from the judge, With each interruption, his frustration increased.

        Several feet away, his court-appointed attorneys, acting as co-counsels, sat quietly. Unable to intervene, they could only watch as the judge told their client points of law they already knew.

        Self-representation is common among civil litigants, but rare in the criminal realm. Nevertheless, there is a noted increase in both arenas in courtrooms across the United States. The reasons are many and include anti-lawyer sentiments, lack of funds, confidence in one's own intelligence, a desire to use the courtroom as a bully pulpit or a general distrust of the court system.

        There are no data suggesting the chances of a favorable outcome are better when a litigant represents himself. But increasingly, people accused of serious crimes are risking personal freedom - or even their lives - to have their day in court.

        Analysts and legal experts say the influx of pro se (Latin meaning for himself or herself) litigants has grown so much over the past five years that some states have set up programs offering help and information to those who want to represent themselves.

        In the mid-1990s, self-help centers, as they're called, first appeared in Arizona and quickly spread to California and New Mexico, according to the Virginia-based National Center for State Courts, an agency that monitors judicial administration. A 1999 survey compiled by the Chicago-based American Judicature Society found that about 19 states including Florida, Hawaii, Pennsylvania, Indiana and Illinois, have statewide programs to assist those who wish to represent themselves.

        These centers provide forms and detailed instructions to those involved in “routine types of cases” such as uncontested divorce, guardianship, and landlord/tenant disputes.

        In Colorado, the most experienced court clerks staff filing windows and telephone lines in order to answer questions from self-represented litigants. And in Maryland, law students are allowed to assist those representing themselves.

        “Part of our responsibility as lawyers in developing pro se tools is helping people figure out when they can represent themselves and when they can't,” says Lisa Colpoys, a lawyer who is executive director of the Illinois Technology Center for Law and The Public Interest at Chicago-Kent College of Law.

        Her group is building Web sites that will offer legal help to those representing themselves in civil suits. (Web resources)

        “There are many simple legal matters that people can handle very well on their own. Lawyers don't like to hear that because it takes business away from them. But the reality is that there are many simple legal matters that can be handled with some instruction,” she says.

Many lawyers don't approve

        Many in the legal community don't approve of self-representation by laymen.

        They contend that law is a specialized field, steeped in procedure and practice. The pitfalls are deep and many.

        And they fondly quote President Abraham Lincoln, who said: “He who serves as his own counsel has a fool for a lawyer and a jackass for a client.”

        Jay Clark, a Cincinnati criminal defense attorney, says the reasoning is simple: “If your car breaks down, you take it to a mechanic. If you need surgery, you go to a doctor. If you have to go to court, you need a lawyer.”

        Greg Cohen agrees. “It's a horrible idea to represent yourself,” he says.

        A past president of the Greater Cincinnati Defense Lawyers Association, Mr. Cohen says his opinion has more to do with fairness and expertise than his wallet.

        “I have an obligation to see that the (justice) system works and that individuals who need it are provided with zealous and effective representation,” he says. “We have procedures by which we operate that keep the system working smoothly. Those procedures are not designed to keep pro se litigants out, they're designed to keep the system flowing smoothly.”

        In June, Charles M. Steele, who is accused of a 1994 rape and kidnapping, asked Hamilton County Common Pleas Judge Norbert Nadel if he could represent himself.

        Already in prison for an unrelated crime, Mr. Steele cited the Sixth Amendment and a 1975 U.S. Supreme Court ruling affirming a person's right to waive counsel. His handwritten request appeared professional and its arguments plausible.

        However, Judge Nadel, as is any judge's discretion, rejected the request because he believed Mr. Steele would not be able to effectively defend himself. If Mr. Steele were found guilty, his conviction could be overturned on appeal because of inadequate representation.

        The judge, instead, appointed counsel and set a trial for September.

        “A lot of inmates get the idea that they can defend themselves because of the jailhouse lawyers,” Judge Nadel says, referring to inmates who study law books and advise their fellow prisoners on law. “If those jailhouse lawyers were so smart they wouldn't be in jail themselves.”

        Despite Ferrata v. California, the 25-year-old U.S. Supreme Court decision affirming a person's right to waive counsel, there are no Ohio statutes mandat ing that court systems teach pro se litigants the nuances of court procedure.

The Home Depot of law

        Still, in this do-it-yourself age, there are many who aren't afraid to take on the job themselves, be it for a divorce, child custody, or a civil protection order.

        In Hamilton County Domestic Relations Court, pro se filings of domestic violence civil protection orders numbered 618 in 1992. But last year, they topped 1,266.

        Ray Shannon, Domestic Relations Court administrator, says the increase could be attributed to the cost of civil filing fees - $250 - on top of what a lawyer might charge.

        People also might feel empowered by the myriad of kits, sold in bookstores, containing forms that tell them how to do everything - divorces, wills, trusts - on their own, officials say. In Ohio, though, the only forms that comply with state law can be found in a kit called the “E-Law Pack.”

        The availability of information on the Internet also can be factored into the increase of pro se litigants.

        Court rules and procedures are posted on the Web sites of court clerks' offices in Hamilton, Clermont, Butler, Kenton, Boone, Campbell and Warren counties.

        The practice clearly is more common in civil matters, where representation is not guaranteed as it is with criminal offenders.

        But sometimes, criminal defendants see a chance to tell their stories, unfettered by a lawyer representing them.

        In April, one of America's Most Wanted, anti-abortion activist Clayton Lee Waagner, acted as his own attorney during his federal trial on weapons and car theft charges in U.S. District Court in Cincinnati.

        Though acknowledging his guilt, the 48-year-old Pennsylvania man considered it an opportunity to share his radical ideals with a captive audience.

        Like Garey Smith, Erik Earhart represented himself during his July trial in Hamilton County Common Pleas Court. Unlike Mr. Smith, the 37-year-old Michigan native accu sed of rape and improperly touching several girls, preferred to present his defense alone. He was convicted and is scheduled for sentencing Aug. 29.

        In Butler County, Common Pleas Judge Keith Spaeth is expected to decide next month whether he'll allow 36-year-old Tonda Lynn Ansley, accused of aggravated murder in the shooting death of her landlord, to defend herself.

        Nevertheless, self-representation in criminal cases remains rare.

        In his 5 1/2 years on the bench, Hamilton County Common Pleas Judge Steve Martin says he has yet to have a criminal defendant in his courtroom represent himself.

        He says most criminal defendants realize their freedom is at stake and aren't willing to gamble.

        Still, he adds, “Every case is different. You'll have a defendant who wants to handle his own case and in that event I'd probably appoint a lawyer anyway. As a judge, my obligation is to make sure people's rights are protected. But, if someone wants to represent himself and makes a stupid decision, that's their choice.”

Garey Smith's day in court

        Garey Smith maintained through his four-week trial that he “just wanted the truth” and for this reason he had to tell his story himself.

        He toted his own telephone book-sized legal briefs into court, balanced on hands cuffed at the wrists. He debated the law with prosecutors, questioned jurors, and addressed the judge himself.

        Looking more like a college professor than an accused murderer, he wore half-moon spectacles, a tweed sport coat, sweater and khaki pants. He sought to convince jurors he was j ust like them and that his actions were committed in self-defense.

        In the end, though, jurors found him guilty and when he returns to court for sentencing Sept. 17 he could face life in prison.

        Undaunted, Mr. Smith has continued to act as his own attorney and has requested a new trial.

        In 1993, he'd been convicted of an assault charge, but instead of going to trial, made a deal with prosecutors that sent him to prison for two years.

        “I always felt that I should have taken my day in court and often wonder(ed) what would have happen(ed). That is the main reason I decided to defend myself in this case,” he wrote in his request.

        Mr. Smith also has begun to appeal his most recent conviction. And he's already hit a snag.

        He tried to call a juror's home to get an understanding as to why he was convicted. It's common for defense attorneys to talk with jurors to get input on the cases they presented.

        Officials quickly reminded Mr. Smith, though, that unlike an attorney, he is not a “disinterested third party.” They confiscated juror questionnaires from his trial, preventing him from calling jurors.

        “It was suggested that he write a very nice letter instead,” says Mr. Cohen, one of Mr. Smith's court-appointed attorneys. “It didn't occur to him that as a person convicted of a heinous offense he might make a juror nervous.”

Notable cases of self-defense
Do-it-yourself legal resources

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